Some folks think small town city Americana is hokey and a waste of money.  Not me.  I love a parade, and was thrilled to have the Milwaukee “holiday” parade right in front of my hotel yesterday morning.  Marching bands trying their best to stay in tune. Adults wearing funny costumes.  Local celebrities in convertibles on a cold day.  America.

I watched for a while, enjoying both the parade and the crowd watching the parade.  Parents holding hot coffee and kids wrapped up like little butterball turkeys.  Sure, it seemed a little early to have Santa Claus coming to town, as this was really a Christmas parade, but even in Milwaukee they won’t admit to it lest anyone be offended by the idea that Christmas is coming.

The bands were interspersed with the celebrity cars, mostly local radio and TV personalities, for former demonstrating why they are more appealing when unseen, and the latter just smiling.  Then came the Mayor of Milwaukee, who was quite popular having just lost the governor’s race after an unfortunate bashing with a pipe at the State Fair.

Then came the shocker.  A celebrity of sort, John Chisolm sitting up on the trunk of the convertible waving at the crowd like crazy.  From what I could tell, he didn’t sing or dance. He couldn’t play rock music or announce the weather.  I don”t know if he’s any good at telling jokes.  Still, there he was.

Chisolm was the Milwaukee County District Attorney.  Chisolm was waving at the crowd like a star.

As an elected official, he has a need to keep his face in front of the people, to make himself appear popular and available.  That’s part of the gig.  But there’s a huge difference between shaking hands, kissing babies and telling the constituents that he’s going to lock up their children protect them from crime and waving to the crowd like the guy who plays accordion in a favorite polka band.

Would the top public defender follow in a convertible of his own?  Nope.  Just the DA. 

It’s a subtle message to the people of Milwaukee, who might well be thought of as potential jurors, that the guy who brings charges against people is a celebrity, someone they would want to see waving at crowds from a distance.  There a sense of credibility, even admiration, attributed to people who sit up high in the back of a convertible in a parade.  Would such a man lie to you?  Would such a man do wrong?  How could you not admire someone who is obviously so important that he gets his own convertible in the holiday parade?

I’m not suggesting that we load up parades with a bunch of extra people riding in the back seats of convertibles who can’t sing or dance.  Who wants to sit in the cold and look at them?  But why would anyone think that John Chisolm is worthy of interest to overly-bundled children? 

Moreover, what made Chisolm think that waving at the crowd as if he could play a mean accordion was adding to the dignity, the gravitas, of his function?  If he wants to be a celebrity, riding around in parades and waving at adoring fans, that’s fine.  But then, he ought to pull the accordion out of the closet and practice. 

District Attorneys should not be celebrities, and when they confuse their function to the point that they pretend to be worthy of interest in the holiday parade, it’s time to take a serious look at whether he has the discretion to handle the job.

Other than that, the parade was great.

The call came in a little after midnight.  Unsurprisingly, I was not there to answer it.  When I learned of the call this morning, I tried to see who it was.  Caller ID worked perfectly, but the caller’s identification was anonymous.  The caller made a choice to conceal her identity.  It worked.

The call was made after she, as the caller was clearly a woman, had received her midnight call, that her father, son, husband, baby daddy, was busted.  She was frantic.  To the extent I could understand what she was saying, the arrest was very serious and there were a number of charges.  What those charges might be, I couldn’t say.  The explanation, to the extent I could understand it, was offered in that obtuse fashion of someone trying to say something without actually saying anything. 

Was it a murder?  A drug deal?  A bribe of a foreign official?  Beats me.  All I know is that she was talking very fast and very scared.  She knew she wouldn’t reach me after midnight, and asked that I call her back first thing in the morning.  It was urgent.  Please call back.  We’re depending on you.

And I can’t.

True, I’m sitting in a hotel room in Milwaukee, Wisconsin at the moment, making it difficult to appear for an arraignment today, unless the arraignment is happening in Milwaukee, Wisonsin.  It could be, since she didn’t mention where in the world this arrest took place.  Phones are like magic, and can reach distant places.  I get calls from all over the country.  “Do you do DUIs in Phoenix?”  No, not really.

But the reason I can’t return her call is that I don’t know her name or number.  She was calling me on a cellphone.  She was fading in and out, in and out, the whole time.  I could barely make sense of the message to the extent I could understand it, but I can piece together some of the thoughts she tried to express.  What I can’t piece together is the name and telephone number.  You need all the digits to make a successful phone call.

I don’t know whether she was using 3G or 4G or no G.  I can’t tell if it was some glitch caused by traveling between cell sites or walking around a room with thick plaster walls.  I dunno.  I also don’t know how to reach her.

This morning, there is a woman who is waiting for me to call her back.  Her midnight call to me was made in desperation, and I hate the idea that I’m leaving her hanging, or that she will think that I don’t care enough to return her call.  I do.  Whether this is a case I would take, I can’t say, but at the very least I would call her back and, if not right for me, steer her to someone who could help her.

Instead, she will hear nothing from me this morning because I don’t know how to reach her.

If you call on a cellphone and leave a message, you must recognize that there is a very real chance that the message will be garbled and that the other person will not be able to understand or hear what you’re saying.  And if you elect to be anonymous on your cellphone, such that your number does not appear on caller ID, and I can completely understand why someone would make that choice as we don’t want people bothering us on cellphones, please realize that it means your number will not appear to your caller even when you really want them to call back.

Technology is a wonderful thing.  It’s not a perfect thing.  If something really important has happened and you really need to speak with somebody, be aware that a call from your cellphone may be not be sufficient.  Best of luck today, whoever the woman who called me is, and whoever the person she was calling about is.  I’m sorry I didn’t call you back.  I really am.

There are few things that we possess that no one can ever take from us. Foremost amongst them is integrity.  Only we can give up our integrity, and it seems as if people are doing so in droves. 

Perhaps giving it up is the wrong way to put it.  Selling it.  Cheap.  Doing whatever they have to do to get a case, gain popularity, make a buck, salvage a sinking practice.  The process of rationalization to justify doing what you have to do in difficult times is like a war, albeit an internal one, where we fight ourselves and our better judgment. 

We may know right from wrong, but we know what’s good for us at the moment.  We then struggle with ourselves to find a way to do what we want to do and make sense of it in a way that allows us to pretend we aren’t self-serving sluts.  We only fool ourselves, but we take comfort in those around us making similar choices and tell each other that we’re not bad people for making bad choices.

While doing something bad may not make us a bad person, selling our integrity does.  Once a person has done so, there’s no going back.  I had this discussion with Ken at Popehat the other day, in reaction to this post which linked to another post by a guy named Marshall, who, in my view, has no integrity. 

Ken’s use of his post wasn’t wrong based on content, but it was wrong, in my view, because I can’t abide anyone who has forsaken his integrity.  Ken wasn’t as concerned about it as I was, finding that a post floating in the ether that did the job of explaining something he wanted explained, was sufficient reason to use it.  I would have rejected that premise.  I will not bolster the failed reputation of anyone who has sold his integrity to cover up his failures in fact and in character.

The same occurred to me when I read Carolyn Elefant’s post about e-shaming as the alternative to bar regulation of lawyer’s online speech.  Nobody wants to be regulated, though anyone of even limited intelligence realizes that many have gone off the rails, lying through their teeth about themselves on websites and blogs, whether by use of stock content, scraping from others or just your basic, everyday, lies. 

There are also those who play upon the dull comprehension of others, coming as close to the line of deceit as they believe they can get away with, capturing the hearts and minds of those who aren’t swift enough to connect the dots or see through the marketing veil.  Though these are smarter people, they are more venal in the sense that they have sold their integrity just like the overt liars, but believe they have tricked us into believing that they haven’t.  It’s like a double loss of integrity, and the shame is that it works pretty well, provided you don’t think too hard or you or can be flattered into joining their choir.  Dumb people are easily flattered.

Carolyn notes that it’s unpleasant to deal with a “colleague” who has strayed.  No one wants to point fingers and call names. 

I simply don’t have it in me to publicize other lawyers’ ethical missteps, especially when they may not have known better. Sometimes I wish I did.

In any event, e-shaming isn’t the only antidote to deceptive practices in the blogosphere. For me, a preferable option to e-shaming is e-lucidation: bringing unprofessional or unethical use of social media to a colleague’s attention either through back channels or an informative blog post, explaining the problems and identifying corrective action or a better approach. 

Jason Cokinos never would have imagined the magic powers of a police uniform.  Not only did it make him look dashing, but it saved him a bundle. Via Turley :

Montgomery County police officer Jason Cokinos is back walking the beat after hitting and paralyzing 14-year-old Luis Jovel Jr. Cokinos was speeding to his off-duty job when he hit Jovel and received only a $185 speeding ticket.

Jovel Jr. was left a quadriplegic with permanent brain damage requiring around-the-clock medical care. The police refuse to say what discipline Cokinos received for the accident, citing state privacy laws.

The case involved a curious legal argument. Cokinos was traveling at 56 miles an hour in a 30-mile-an-hour zone when he hit Jovel — and a police investigation found that had Cokinos not been speeding, he would not have hit Jovel.

Before the punch line, note that Cokinos was off duty speeding to his second job.  As I’ve noted many times in the past, the nature of police shifts means that almost every cop worked a second job.  Cokinos was no exception, and it provided an unanticipated benefit.

A Montgomery County District Court judge, however, found Cokinos not guilty of negligent driving or contributing to an accident. 

The family was limited to $200,000 per case by a state law — a ridiculously low cap in such cases. They were told that they could not seek more in the case (absent a settlement) because (even though he was off-duty traveling to an off-duty job) he was in his police cruiser and wearing his uniform.

Sweet for Cokinos.  Less sweet for 14 year old Jovel, brain damaged, quadriplegic and incapable of paying for the care he will need for the rest of his life.

Accidents happen.  Let’s supposed that Cokinos’ $185 ticket was special because he’s a cop.  It could happen.  But then, at least the kid he ran down would have redress against the negligent driver to cover the cost of his care.  It’s bad enough he’s brain damaged and a quad, but does he have to be hungry too?

But having been in uniform and driving a cruiser, Cokinos gets a free ride.  What’s interesting is that he wasn’t serving and protecting, but driving to his private gig in public wheels.  He didn’t put on his Dairy Queen hat, but his police officer hat.  And so he gets to speed without fear, without concern.  Run those kids down with impunity, as long as the Chief lets you drive the cruiser to the side job.

Lt. Paul Starks, spokesman for Montgomery police insisted that the limit on liability was appropriate because “[i]f you are in the [cruiser] you are not considered off duty.”

There’s a solution to this problem that would likely have worked for all involved, including the people who were paying for the cruisers for cops to drive to their second jobs while speeding and running down 14 year olds.  It would have better served all interests.  Except Cokinos’. 

There’s no shortage of folks on the internet, and certainly in the blawgosphere, screaming for change.  While some are thoughtful and well reasoned, most are highly emotional, threatening everything from revolution to the apocalypse.  There’s often some claim to Justice involved, or at least a plea for common sense. 

Even though it’s absolutely clear and undeniable to you, do few seem to back you up or get your point?  Well, now there’s a place to go, Change.org.

Change.org is the world’s fastest growing social action platform, empowering people to make a difference across a variety of important causes. Our team of writers and editors provides daily coverage of breaking social action campaigns, connecting people to opportunities to get involved. We also provide free tools that allow anyone to run their own campaigns. Our tools are used by thousands of grassroots activists and organizations around the globe. We count many of the world’s leading nonprofits as partners, including Amnesty International, Sierra Club, Human Rights Campaign, and the United Nations Foundation.

Sounds great, doesn’t it?  And they even have a  criminal justice section, which is where you’ll find this gem :

Rapists, take note: Want to beat the rap and inflict even more psychological damage on your victim while you’re at it? Be your own attorney!

While that might not sound like the best recommendation, what with representing one’s self in court typically associated with psychopaths whose defenses tend to go down in flames, it unfortunately seems to be sage advice for sexual assailants, as Alex Dibranco reports on the Women Rights blog.

Why? Consider a recent case out of Washington. As The Seattle Times reported last week, a man accused of child rape had charges against him thrown out after the alleged victim in the case, now 21, refused to let him cross-examine her on the stand; rather than testify, she spent three hours threatening to jump off the roof of the King County Courthouse. (The man still faces charges with respect to other alleged victims.)

Continue reading →

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

–Associate Justice Antonin Scalia in  City of Ontario v. Quon

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

And it increasingly does so at enormous length.

Among the things some law bloggers do is parse those decisions that pertain to our area of interest.  We spend more time reading, and considering, Supreme Court decisions than we were inclined to do before, pouring over the phrases and trying very hard to understand what the decisions mean.  It’s usually pretty easy to figure out which side won.  It’s not so easy to figure out why, or what it means for the next case.

Critics of the court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.

Liptak offers some examples:

A decision in May striking down life-without-parole sentences for juvenile offenders who did not kill anyone said only that states must provide “some meaningful opportunity to obtain release.” In dissent, Justice Clarence Thomas wondered what that could possibly mean.

A decision last year that required a judge to step aside from a case involving a coal executive who had spent millions to help elect the judge left many questions unanswered about when recusal is required. How many questions? Chief Justice Roberts, dissenting, listed 40.

In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”

Of course, it’s not easy to put into words a rule that will adequately and appropriately cover a broad array of circumstances, and has the potential for life-changing impact on thousands, perhaps millions of people.  But that’s why they pay them the big bucks.  That’s the job, and there isn’t a person on the Supreme Court who was unaware of the heavy burden when they accepted the appointment.  Tougher than you though?  Bummer, get to work.

Liptak offers one basis for the problem stemming from the fact that opinions are drafted by children.

“Although today’s Supreme Court opinions are no more poorly written on average than opinions from the era in which the justices wrote their own opinions, there is nonetheless a loss when opinions are ghostwritten,” Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in The New Republic in 2006. “Most of the law clerks are very bright, but they are inexperienced; and judges fool themselves when they think that by careful editing they can make a judicial opinion their own.”

Delegating actual drafting to law clerks who are typically just two years out of law school, critics say, can be an abdication of judicial authority or at least an invitation to uneven and ambiguous prose.

This is a bug, not a feature.  Particularly given that the Supreme have reduced their caseload from about 150 in the 1980s to about half now, it doesn’t seem unbearably onerous for the justices to get more “hands-on” in the writing of their decisions.

More problematic is that inexperienced clerks, who perceive themselves to be the Crème de la Crème of the profession, the best and the brightest, are incapable of perceiving the uses to which the opinions they draft are put.  These are trench issues, for both judges and lawyers, who are constrained to apply rules to the lives of real people.  These child-clerks have never been responsible for real people in their lives, and thus can’t begin to fathom how their playing junior God can screw-up lives.  And they will never do so, going on to be scholars and perhaps even become a justice in their own right.  Yippee.

But this isn’t an excuse.  We appoint justices, not law clerks.  That justices are derelict in their duty is their own responsibility, not the children on whom they lean.  Once the first draft is produced, it provides the outline upon which the final product relies.  If it doesn’t lead to a clear, reasoned rule, then it merely adds to the confusion.  And confused courts tend to be very bad for criminal defendants.

Liptak goes on to challenge the vagaries of “unanimous” decisions, consisting of a majority and seven concurrences (Thomas joined Scalia’s).  He notes, without surprise, that dissents are clearer than concurrences.  But the upshot is that clear dissents do little to tell us what the majority really means.  And that remains the problem.

My suspicion is that the root cause of this institutional failure is the  lack of trench lawyers on the court.  As politicians strive to find the “best and the brightest” who happen to share something akin to their political views, have no strikes in their past and are confirmable, they avoid lawyers who actually worked for a living.  And don’t tell me that a few years as a prosecutor counts.  Talk to me about someone who actually held a person’s life in their hands, and felt the sting of a judge who just didn’t give a damn.

These are lawyers who make decisions because they have no option not to.  They either object or the objection is lost.  They make the argument or its goes unheard.  There’s no such thing as litigation modesty, despite arguments for the propriety of judicial modesty.  We either do it, and do it now, or kiss it good-bye. 

It seems almost inconceivable that the Supreme don’t realize, when the issue a decision, that they have left critical questions unanswered or made a rule so vague that it’s meaningless.  These aren’t stupid people.  Rather, they fear making the wrong decision, or a decision that is right for the case before them but applies poorly to the many others that happen in real time.  But fear of error or unduly expansive decision-making is the cause of worse problems than the possibility of an error itself.

In February, for instance, the court considered whether police officers could resume questioning a man who had invoked his Miranda rights more than two years before.

By a 9-to-0 vote, the justices said yes. Justice Scalia, writing for seven justices, added that the court should do more than merely decide the question before it.

“Law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful,” he wrote.

How long, then, must the police wait after they have released a suspect? Two weeks, Justice Scalia said, sounded about right.

The rule was incredibly stupid, pulled out of thin air and dead wrong.  But at least we knew what the rule was.  Anything else is worthless to all involved.

Bare wall and lamppost space in Manhattan is prime territory for posters.  It’s been that way forever.  Concerts by unknown bands, art gallery openings and the like are promoted on any space available, which means anywhere the words “Post No Bills” can’t be found.  Why those magic words work, I can’t say.

But in Bellmore, Long Island, posters of a different nature appeared.  Via Eugene Volokh,  Newsday reports:

A group of teens spotted Sunday evening slapping up stickers along a Bellmore street [including on a lamp post and a Chamber of Commerce sign] could be charged with felonies for posting white supremacist messages and images ….

 

One sticker, photographed and removed by police, reads “White Pride World Wide.” Another says “Don’t Blame Me, I Voted for Hitler.” A third shows a hand making an obscene gesture over a Star of David….

Whoever posted it could be charged under a state law prohibiting the posting of images of swastikas or nooses. The first-degree harassment charge carries a maximum sentence of 1 year in jail….

Over at Military Underdog, Eric Mayer shows why criminal defense lawyers, a hardened bunch under most circumstances, have just about the biggest heart of all in the profession.

Today, I became aware of a holiday project undertaken by several classes at a Fort Leonard Wood elementary school. Rather than the typical gift exchange prior to the holiday season, each class adopts a family (mainly children) that is presumably living in a state of poverty. The idea is that the school’s children and their families pool resources and gifts in order for this family’s youngsters to have a truly merry holiday season. In most circles, this is called Adopt-a-Family.

I’ve seen several of these programs, and often the family is lavished with an amazing amount of gifts, from toys to clothing. It benefits the designated family, but it also shows you that generosity is not dead. In the end, it is usually a win-win situation for everyone involved. It is nice to see this particular elementary school teaching its students how good it feels to give.

Sure, the classes are doing the adopting, but Eric is doing the writing about the adopting, spreading both the idea and the reminder that this is how we should be, how our children should be raised, how society should help others.  Despite Eric’s deniably sensitive side, he posts not to praise, but to make a broader point.

The problem arose when the list of items that this poor, adopted family wanted for the holidays, which I assume to mean Christmas, included electronic games.  What type, you wonder?  Games for the Wii as well as games for the Xbox 360.  In other words, this below the poverty line family has both platforms running in their hovel.

That’s it. They pushed me over the edge. I’m calling bullshit.

Not one, but two electronic gaming systems–and the latest generation of said gaming systems, no less.

Now, before you label me as a horrible, hard-hearted jerk, consider this. I agree that people in our nation should be free to apportion their money for their own purposes. I am a libertarian after all. I also agree that people deserve a little entertainment and superfluous purchases now and then, and I believe that people of all income levels deserve happiness.

Hey, don’t look at me, Eric.  I’m with you.  And that’s why I write about what you write about. 

Do they have the right to buy as much electronic crud as their paychecks and credit cards will allow? Sure. But, I draw the line when they then hold themselves out as needy and worthy of the charity of others.  I’m probably a bit jaded. After all, I witnessed, first hand, refugees from Hurricanes Katrina and Rita using their FEMA/Red Cross debit cards to buy heaps of DVDs, CDs, and video games–only days after I opened my wallet substantially to the cause. I understand why so many resist charitable participation.

For years, I’ve tried to remind people to give, but give wisely.  As we enter the season of Thanksgiving, and in anticipation of the Christmas season, and while there remains many in our country who are unemployed and whose families are suffering, this is a critical time to help others.  I wrote this two years ago, and it’s every bit as true today:

My prickly demeanor notwithstanding, charitable involvement has long played a vital role on my life. I’ve enjoyed a blessed life, and I know it.  Others have not, and I want to help.  It is my hope that you, dear reader, feel the same, on this Thanksgiving day and every day. 

This year presents grave problems for charities, as it is far harder to part with donations when you are suffering as well.  For some, it simply won’t be possible.  But for those who can, it’s critically important that you reassess where you give, as all charities are struggling in this economy, and most will fall far short of their goals.

When there are hungry children to be fed, they come before families worried about having the coolest games for both the Wii and Xbox 360.  The adopt-a-family idea is wonderful, but not excuse to suspend reason or to take one’s charitable largesse and put it to foolish use. 

Eric still plans to give.  That’s because he’s a person of good character, a criminal defense lawyer who understands that its incumbent upon those of us who enjoy a wonderful life to help others.  But having a good heart doesn’t require him to have no brain.

Oh, don’t worry, I’ll contribute. I always do. After all, this is the giving time of year, no matter our gripes.

I want to give them jammies, but my teenager suggested something that would better facilitate their happiness and holiday joy.

A surge protector.

Please give.  Please give wisely.

When he left Jones Day to take up arms as head of litigation at Aon, Mark Hermann, author of the infamous, cruel and brilliant Curmudgeons Guide to Practicing Law, he walked away from his blog, Drug and Device Law, at the top of his game.  One of the few, the proud, the brave. An honest man.

He’s back.

And weirder still, he’s back at Above The Law.

But based on the return of the spotlight to the client, as well as what we were hearing from our readers,
it became clear that there was an even greater hunger for coverage of the corporate legal world. Adding a dedicated in-house column is just a natural extension of the Above the Law brand.

Mark Herrmann